Maryland Injury Lawyer Blog

Bizarre outcome for the first Neurontin trial. The family agreed to dismiss the lawsuit in the middle of trial after an anonymous donor - huh? - offered to put money in a trust for their 10-year-old daughter, according to Mark Lanier, the family’s lawyer. Bloomberg has a compete article on the case which does not have the amount of the trust, but I'm told the anonymous donor offered $50,000.

It is hard not to speculate who the anonymous donor is. Who would offer a little girl money contingent on her dropping her lawsuit? Pfizer? Oliver Stone would buy that one. A lawyer with a lot of Neurontin cases who did not want this one to go to verdict? An anonymous person who is not a product liability lawyer as others have suggested? Who knows? Crazy story.

• Drug Recall Lawyer (blog post on dismissal)
• Bloomberg (another complete article on this trial)
• My Post on Monday on the Trial

I'm pretty diligent about sticking to issues of interest to personal injury lawyers on this blog. But Eugene Robinson has a great article on the Henry Louis Gates debacle that was both insightful and fun to read.

In another big informed consent opinion, the Wisconsin Supreme Court in Bubb v. Brusky overturned the trial court and an intermediate Wisconsin appellate court in finding that a doctor did have to inform his patient of the treatment options if the medical community is split as to the appropriate course. This case strikes me as a cousin of McQuitty v. Spangler, the Maryland high court informed consent opinion that I wrote about yesterday. Every Maryland malpractice lawyer should read this opinion along with McQuitty. But while these are long, complicated opinions, both can be distilled down to this: informed consent requires doctors to inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. Period. The take home message I get from these cases is that defendants' malpractice lawyers can save the circuitous legal arguments that run afoul of this common sense notion.

In this case, lawyers on both sides agreed that a highly stenosed carotid artery puts a patient at greater risk for having a stroke and that a Doppler evaluation was a reasonable option that would have diagnosed the stenosed carotid artery in this case. But the doctor's lawyer argued, among other things, that a consulting doctor has no duty to inform a patient and that there was no apparent consensus in the medical community on the question of whether the standard of care required carotid Doppler ultrasounds to detect artery blockage in patients suffering a TIA.

The trial court agreed, refusing to allow jurors to consider an informed consent claim that the doctor should have advised the Plaintiff of alternative treatment options.

The Wisconsin Supreme Court reversed and remanded the case. The opinion counters a great number of creative exceptions to Wisconsin's informed consent statute. But the court makes clear that doctors have an obligation to inform patients of treatment alternatives that a reasonable patient might take.

You can read the full opinion here.

Big summer for the Maryland Court of Appeals in personal injury/medical malpractice appeals opinions. The latest in a recent spate of Maryland high court opinions, McQuitty v. Spangler, involves a tragic case of a boy who was born with severe cerebral palsy. Plaintiff’s lawyer argued at trial in Baltimore County that the doctor breached the duty to obtain her informed consent when he failed to inform the mother, who was hospitalized for a partial-placental-abruption, of risks and available alternative treatments related to material changes in her pregnancy: a second partial-placental-abruption, oligohydramnios, and intrauterine growth restriction. A partial-placental abruption is the premature separation of a portion of a woman’s placenta from the interior wall of her uterus. Partial-placental abruption vary in degree but the larger the separation, the greater the risk to the unborn child.

The mother in this case faced an awful choice: either take the baby early or assume the risks that come. No one should have to even have the option of making such an awful decision. The informed consent argument in this malpractice case was that material facts were learned about the degree of separation on which a reasonable person could have made a different decision, and these facts allegedly were not communicated by the doctor to the patient.

At trial, which found the doctor did not commit medical malpractice, the jury was unable to reach a verdict on the question of informed consent. In a second trial held two years later, the jury awarded the family over $13 million. Even in a cerebral palsy case, that is a big verdict in a Baltimore Court, a place plaintiffs’ lawyers universally believe is a challenging jurisdiction.

Continue reading "Medical Malpractice and Informed Consent in Maryland: New Maryland Court of Appeals Opinion" »

The first Neurontin suicide lawsuit against Pfizer gets underway today in Boston. The case is being billed by many, including even the trial judge, as an underdog of the Creed-Balboa variety. Pfizer has not set aside a reserve to deal with any of the Neurontin lawsuits.

Mark Lanier is Plaintiff’s lead attorney. That’s where the Creed-Balboa metaphor breaks down. Very quickly.

Bloomberg has a very complete article of what appears on its face to be a difficult case factually for the Plaintiff.

I've complained before about medical malpractice reform advocates who hold the Congressional Budget Office up as the apex of neutrality and wisdom in one context, but ignore its findings about the insignificant costs of defensive medicine. Charles Krauthammer managed to do this within the same editorial in the Washington Post on Friday.

In an unrelated story, Charles Krauthammer is a doctor.

John Bratt on the Baltimore Injury Lawyer Blog finds a way to make the lawsuit against Ben Roethlisberger of interest to personal injury lawyers.

I offer my own thoughts from a more philosophical and less substantive perspective here.

The Yaz and Yasmin litigation is just now starting to take off, with at least 11 lawsuits around the country. Lawyers evaluating Yaz/Yasmin cases need to pay particular attention to (1) the injuries; (2) the defendants; and (3) viable claims.

Continue reading "Yaz Lawyer: Information for Attorneys Handling Yaz/Yasmin Lawsuits" »

Last month, I wrote a post about an article I read from Ron Miller, a politician in southern Maryland, who wrote an article suggesting we take a shot at health courts in Maryland to help resolve malpractice cases. Mr. Miller fails to note that we already tried this in Maryland and it completely failed.

Anyway, bizarro Ron Miller strikes back in Southern Maryland Online:

I was pleasantly surprised to stumble across a response to my column on medical malpractice liability reform from another Ron Miller, Ronald V. Miller, Jr. to be exact. Ron is an attorney in Baltimore who represents individuals in personal injury cases. His response is predictable:

"I'm sure he is a nice guy. But politically, and particularly on this issue, he is the anti-me. And I don't think this article even offers the best arguments for those arguing for tort reform in Maryland medical malpractice cases."

Ron is particularly critical of my proposal for a hospital-administered arbitration system for medical malpractice cases, stating it would be "mad" to let hospitals decide if malpractice occurred and what the settlement will be.

Well, Ron, I'm sure you are a nice guy and I dig your name. You may even be, as you say, more famous than me. That's cool; the paparazzi can get on your nerves after a while. I'm not a lawyer so I don't have all your "book learnin'" as my grandfather used to say.

If you read the article beyond the suggestion that sent you into low earth orbit, however, you'd see that even if a patient goes through the entire process, they still have the right to take their case to court if they aren't satisfied. This proposed approach is more flexible than the standard dispute resolution process in most corporations these days where, once you accept their jurisdiction, you surrender your right to outside litigation.

You'd also see where I suggest an independent arbitration system could be established to further ensure impartiality. Finally, I mentioned this system has proved credible with patients who've used it.

You see, "bizarro Ron Miller" doesn't believe a lawsuit is the only way to satisfy the patient and discipline doctors legitimately guilty of malpractice vice simply not meeting unrealistic expectations. I don't want to threaten your livelihood, however. If the health court proposal I reference in the same article is implemented, I think you'd make a great health court judge.

Another critic pointed out that a Congressional Budget Office (CBO) study discounted the conventional wisdom that malpractice liability is a major cost factor in health care. I don't know all the parameters of their study but my mother always told me to "use the common sense God gave you." Common sense tells me if a doctor orders a battery of tests that aren't necessary but might help deflect a potential lawsuit, those extra tests cost somebody some money. If doctors' malpractice insurance premiums are going up rather than down, common sense suggests the cost has to be absorbed somewhere in the system. These higher costs are directly attributable to the threat of malpractice liability and someone's paying for them somewhere.

Continue reading "The Revenge of Bizarro Ron Miller" »

How many medical malpractice trials have there been in Washington D.C. this year? Ummm, let’s see, medical malpractice lawsuits are out of control. I know this because I read the Forbes article repeating the “malpractice lawsuits are running amok and medical malpractice lawyers are the problem” mantra. So how many do you guess? 150? 250? The correct answer, according to a report given by the D.C. Superior Court, is six.

The score is 3-3, three malpractice verdicts for the plaintiff and three defense verdicts. Of course, it must be that the juries are handing out whopping malpractice verdicts. We know this because we have heard it so many times before. So, back to the guessing game theme for today, how much did the juries award in these three malpractice jury verdicts? $20 million? $40 million? The answer is $366,775.24. But even that number is misleadingly high. The largest verdict - $131,775.45 – was taken away by the trial judge. So the total amount of malpractice jury awards in Washington, D.C. in 2009 is $235,000.

Ladies and gentlemen, I present to you, your medical malpractice crisis.

Continue reading "Washington, D.C. Medical Malpractice Verdicts" »

The Washington Post has an article today about doctors who seek pledges from their patients not to complain on websites about the health care services they receive.

Let's set aside the obvious for a second that these agreements are very unlikely to be enforceable, either legally or practically. First of all, wouldn’t you be embarrassed to ask? I think expressing concern before a patient has so much as opened their mouth and said, “Ahhhhhh” just gets the doctor-patient relationship off on the wrong foot.

Still, it is disconcerting that anyone can leave – without any sort of filter – any comment that they want about anyone, be it on Facebook or some other social network, or reviews of doctors and, of course, lawyers. Psychologically, it takes a lot of positive comments to make up for one negative review. I was looking at which Kindle to buy recently and Amazon gives you all of the consumer reviews, including the one that other consumers found the most helpful. Both Kindles I was looking at received largely positive reviews. But I could not help but focus on the few negative minority reports that I read.

Continue reading "Complaints Against Doctors On-Line" »

The Maryland Court of Appeals has two big cases in 2009 – one a lead paint case, the other a medical malpractice claim - in which plaintiffs seek a path around Maryland’s non-economic damages cap after big jury verdicts. Plaintiffs lost Round 1 today.

In Green v. NBS, Plaintiffs’ lead paint lawyers argued that the statutory cap on non-economic damages in Maryland does not apply to personal injury claims authorized by the Consumer Protection Act. Specifically, and creatively, Plaintiffs claimed that a lawsuit brought under the CPA is not a “personal injury action” and the Maryland legislature did not want a cap on deceptive practiced covered by the CPA.

The Maryland high court, however, found that Plaintiffs’ CPA claim is a personal injury action, and that CJ § 11-108 is applicable to a proceeding in which a consumer asserts a claim for money damages to compensate for injuries sustained as a result of a Consumer Protection Act violation. The court’s reasoning is, essentially, that if it looks like a personal injury claim and talks like a personal injury claim, then it is a personal injury claim.

Plaintiffs’ lawyers made two other arguments. The first was DOA: the cap violates the Maryland constitution. Again, Plaintiffs’ lawyers tried to put a CPA spin on the old argument, arguing that a cap on a CPA claim violates the prohibition against the enactment of “special laws” in the Maryland Constitution. But the argument went nowhere with the court.

Continue reading "Maryland’s Cap on Damages in Lead Paint Cases" »

The total cost of medical litigation and malpractice insurance premiums has fallen to an all-time low according to a new Public Citizen report.

Medical malpractice litigation’s share of overall health care costs has fallen to less than 0.6 percent. This incredibly low number is misleading high: it includes insurance companies’ overhead and profit and the cost of hiring malpractice lawyers to defend these claims. Actual medical malpractice payments - money that goes in the hands of the victims and, yes, their malpractice lawyers, have fallen to less than 0.2 percent of all health costs – the lowest level on record.

Here is the most amazing malpractice statistic I've heard in a while: between three and seven Americans die from medical errors for every one who receives a payment for a malpractice claim. To be fair, notwithstanding the oft-cited IOM report, there is no real way to know just how many deaths are caused by medical errors, just as there is no verifiable way to ascertain the cost of defensive medicine. But let's say it is not 7 to 1 but 1 to 1. Given that only a small minority of medical malpractice claims are wrongful death cases, it is a pretty incredible statistic that underscores the fact that most medical malpractice that causes serious injury or death in this country goes unchallenged by anyone.

• Daily Kos (post on Public Citizen report
• Defensive Medicine and the Congressional Budget Office
• Older Data Consistent with Public Citizen's 2008 Report (Maryland Malpractice Attorney Blog post)

I was tempted to respond to this Forbes article on how our tort system and medical malpractice lawyers are ruining New York. But, to save myself some effort, I decided to wait the obligatory fifteen minutes to give the resident New York personal injury blogger, Eric Turkewitz, a chance to respond. Literally 13 minutes later, Eric posted this response, which debunks line by line how misleading this article is in looking at the impact of lawsuits on New York and what the real solutions are to the problems raised.

Look, unless you have been living under a rock, you know that I oppose tort reform. (Okay, I'm deluding my importance, but stay with me.) Reasonable people smarter than I am support the idea of reforming the tort system and limiting the rights of victims. But you have to at least pretend to write a balanced article if your are trying to convince the undecided. Otherwise, you are just preaching to the choir.

Continue reading "Forbes Article on Lawsuits in New York" »

The personal injury case with the "Motion for Counsel to Get New Shoes" that I blogged about Friday ended in a mistrial, setting aside what apparently would been a $2.2 million plaintiff's verdict. So, essentially, filing this silly motion may have cost his injured client $2.2 million.

The writer who wrote the original column provides a well written background of his dealing with the lawyers in the case before publishing the story. I don't know whether this column is accurate. Either way, it does not convey a very good image of personal injury lawyers.

• Palm Beach Post (column explaining original column)
• Original Palm Beach Post (original Palm Beach Post article)
• Above the Law (which is where I found the story)
  

The Palm Beach Post has an insane story about a plaintiffs' lawyer in a personal injury case in Florida who filed a motion to prevent a defense lawyer from wearing shoes with holes in them:

Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles. Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury who are intently watching all counsel and the Court at that moment....Mr. Robb should be required to wear shoes without holes in the soles at trial to avoid the unfair prejudice suggested by this conduct."

Does anyone really believe that having worn out shoes is a secret key of success? Then, again, maybe this is how President Obama rose from obscure state legislature to POTUS in what felt like 20 minutes. (I was shooting for a whimsical topic after yesterday's post.)

• Above the Law (post that includes the motion)
• Lowering the Bar (another post on the topic)
• How Should Lawyers Dress at Trial? (Quad Cities Injury Lawyers post)

The Maryland Court of Special Appeals found Monday that the trial court erred in excluding the estate of a five year old drowning victim from presenting a survival action for conscious pain and suffering of the child while drowning. You can find the opinion here. I first blogged about this case two years ago after an Anne Arundel County jury awarded $4 million in a wrongful death action brought by his parents. The survival claim was dismissed by the trial court for lack of evidence that the boy suffered before he died.

The lawyers in the case on both sides did exactly what lawyers should do: make the best arguments for their clients. I would do the same. But it is haunting trying to explain this to your client in a wrongful death/survival action case. “No one knows for sure whether your child (or parent or sibling) suffered awfully before he/she died. But the likelihood is high because (fill in your own awful means of death). So we are going to argue that he/she endured unbelievable suffering that neither of us can ever imagine.” You don’t say it quite like that. But it is truly awful and it makes you want to get another job.

After I frame the issue, the client almost invariably wants to win the argument. This is completely understandable. But the victim's family finds themselves in the position of rooting that someone who has never met the person they love finds there was horrible suffering before the person's death. But they hope and pray that it is not really true. It is a grotesque paradox.

Defense lawyers have it worse on some level. I don’t know who the lawyer was in this case but what are the chances that lawyer went home to their spouse at the end of the day proud of their victory in the trial court? “Honey, I won this argument today where I argued this little boy drowned and didn’t suffer because there is no proof the child suffered because he died – I’m so proud of my victory.” Do you think that lawyer does not know that child suffered? Don’t you have to sadly admit this as you explain the story of your "victory"? Again, I’d make the argument if I was the defense lawyer. Then I would go home and shower.

Continue reading "New Maryland Appellate Opinion on Survival Actions" »

Obama's original health care bill is dead on arrival because after the Congressional Budget Office -- the nonpartisan gold standard of objectivity according to GOP talking points - concluded last month that the proposed health care reform would cost $1 trillion over the next decade and still leave millions uninsured.

Yet many of those same people are the ones who mocked the Congressional Budget Office as a joke when it found in 2004 that there was little evidence that defensive medicine was contributing to soaring insurance costs. In other words, the CBO is a beckon of nonpartisan objectivity if, and only if, it agrees with me.

Because she's such an easy target right now after this 2010 Census debacle, let's use Republican Congresswoman Michele Bachmann (Hypocrite, Minn.) as an example. She's been holding up this CBO health care estimate as infallible yet ignores the CBO on defensive medicine when banging the drum for medical malpractice caps and other reforms designed to limit the rights of malpractice victims.

Overlawyered celebrates its 10th birthday today. I disagree with many of Walter' Olson's views but we have a lot of common ground, too. I read his blog almost every day as do a lot of others who, like me, share a different philosophy on many issues.

Really, the one of the nicest complements you can give a writer is that you listen to what the writer has to say even when you disagree with it. I feel the same way about, for example, George Will and Charles Krauthammer. I think that all of us need to keep in mind that on a lot of issues of our day, someone smarter than us disagrees. And, with Walter, you always feel like you are getting his thoughtful views as opposed to a knee jerk "party platform" opinion. One good example: Sonia Sotomayor. I don't know how much Walter agrees with her on issues of our day on which reasonable minds differ that will be before the Supreme Court, but those differences did not change his analysis. Too many of us try to solve the equation after we already know the answer. Walter comes up with his own answer by doing his analysis and forming a conclusion, as opposed to forming a conclusion and then doing the analysis.

Happy 10th Birthday Overlawyered!

CNN reports that an FDA government advisory panel voted yesterday to recommend eliminating prescription drugs that combine acetaminophen with narcotics -- such as Vicodin and Percocet -- because of their risk for overdose and for severe liver injury.

I'm glad to see the FDA is looking at the safety and efficacy of existing drugs. There is no question that Vicodin and Perocet are misused and overprescribed. My only fear with a recall or withdrawal of these drugs for what I'm guessing is the 5% of people on Perocet or Vicodin that really need the drug. They are in great pain, are not finding relief elsewhere, and the benefits of the drugs far exceed the risk of overdose or liver damage for that patient.